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Hanson Construction Materials Pty Ltd v Pericich

Hanson Construction Materials Pty Ltd v Pericich

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Case Copied 13 November 2018 18 min read

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[2018] FWCFB 5960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Hanson Construction Materials Pty Ltd
v
Darren Pericich
(C2018/4449)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 13 NOVEMBER 2018

Appeal against decision [2018] FWC 4369 of Commissioner Spencer at Brisbane on 9 August 2018 in matter number U2017/12758 – finding in respect of s.392(2)(c) involved an error of principle and a significant error of fact – public interest enlivened – permission to appeal granted – appeal upheld – compensation decision and order quashed – rehearing – compensation order made.

Introduction

[1] Hanson Construction Materials Pty Ltd T/A Hanson Construction (Hanson Construction; the Appellant) has applied for permission to appeal and has appealed against a decision 1 made by Commissioner Spencer on 9 August 2018 (the Compensation Decision) in which the Commissioner awarded compensation to the Respondent in the amount of $10,951.87, having previously found, in a decision issued on 25 May 20182 (the Substantive Decision), that Mr Pericich had been unfairly dismissed.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[3] At the heart of the appeal is the amount of compensation awarded to Mr Pericich. The relevant background may be shortly stated.

[4] Mr Pericich was employed by the Appellant as a ‘professional tipper driver’ from about 10 April 2013 until he was dismissed on 13 November 2017. The reasons for his dismissal are set out in the letter of termination provided to him by the Appellant, as follows:

‘13 November 2017

Dear Darren

I refer to the incident at around 9:10 AM on 9 November 2017 when your truck and trailer that you were driving had a serious near miss when you failed to stop on the red lights on the railway crossing on Cape Cleveland Road with the bullet passenger train approaching.

Hanson’s motor vehicle policy requires that company vehicles must always be driven in a safe manner and all traffic laws must be complied with in full, at all times. It is part of our overall risk management strategy to eliminate “risky” or unsafe behaviour. This letter serves as a Termination Letter to you for unsafe driving, effective immediately. You will be paid one week’s pay in lieu of notice.

Yours sincerely

Justin Munro

Transport Manager’ 4

[5] In short, Mr Pericich was dismissed for “unsafe driving” as a result of an incident on 9 November 2017 in which, while driving a truck with an attached trailer, he had failed to stop at red flashing lights on a railway crossing on Cape Cleveland Road near Townsville, with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 5960
Decision Date: 13 NOVEMBER 2018

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd has appealed a decision made by Commissioner Spencer of the Fair Work Commission on 9 August 2018 in Brisbane. The original matter, U2017/12758, involved a dispute between Hanson Construction Materials and the respondent, Pericich, concerning compensation under section 392(2)(c) of the Fair Work Act 2009. The appeal argued that the Commissioner had erred in principle and in fact, and that the public interest justified the grant of permission to appeal. The appeal was subsequently upheld, and the compensation decision and order were quashed.

The primary legal issues before the court were whether the Commissioner had indeed erred in principle and fact regarding the compensation determination and whether the public interest warranted the appeal being heard. The appeal hinged on the interpretation and application of section 392(2)(c) of the Fair Work Act 2009, which deals with the compensation payable in cases of unfair dismissal. Hanson Construction Materials contended that the Commissioner had misapplied the law and misinterpreted the evidence, leading to an incorrect and unjust compensation order.

In reviewing the case, the court found that the Commissioner had indeed made an error of principle and a significant error of fact. The court identified that the Commissioner's interpretation of the relevant legislation and the evidence presented was flawed, leading to an unjust outcome. Furthermore, the court recognised that the public interest in ensuring that employment laws are correctly applied and that fair and just outcomes are achieved was sufficiently compelling to warrant the appeal. As a result, the court granted permission to appeal, upheld the appeal, and quashed the compensation decision and order. The matter was remitted for a rehearing to allow for a correct application of the law and an appropriate compensation order to be made.

Orders